HB418 - Relating to prosecution and punishment of certain criminal offenses prohibiting sexually explicit visual material involving children or other persons; increasing a criminal penalty.

  89R1695 CJD-D     By: Johnson H.B. No. 418       A BILL TO BE ENTITLED   AN ACT   relating to prosecution and punishment of certain criminal offenses   prohibiting sexually explicit visual material involving children   or other persons; increasing a criminal penalty.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 21.16(a)(5), Penal Code, is amended to   read as follows:                (5)  "Visual material" means:                      (A)  any film, photograph, videotape, negative,   or slide or any photographic reproduction that contains or   incorporates in any manner any film, photograph, videotape,   negative, or slide; or                      (B)  any disk, diskette, or other physical medium ,   or a file in any digital format, that allows an image to be   displayed on a computer or other video screen and any image   transmitted to a computer or other video screen by telephone line,   cable, satellite transmission, or other method.          SECTION 2.  Section 43.26(b)(3), Penal Code, is amended to   read as follows:                (3)  "Visual material" means:                      (A)  any film, photograph, videotape, negative,   or slide or any photographic reproduction that contains or   incorporates in any manner any film, photograph, videotape,   negative, or slide; or                      (B)  any disk, diskette, or other physical medium ,   or a file in any digital format, that allows an image to be   displayed on a computer or other video screen and any image   transmitted to a computer or other video screen by telephone line,   cable, satellite transmission, or other method.          SECTION 3.  Section 43.26(d), Penal Code, as amended by   Chapters 93 (S.B. 1527) and 1041 (S.B. 129), Acts of the 88th   Legislature, Regular Session, 2023, is reenacted and amended to   read as follows:          (d)  An offense under Subsection (a) is[ :                [ (1) ] a felony of the third degree [ if the person   possesses visual material that contains fewer than 100 visual   depictions of a child as described by Subsection (a)(1);                [ (2) ], except that the offense is:                (1)  a felony of the second degree if:                      (A)  it is shown on the trial of the offense that   the person [ possesses visual material that contains 100 or more   visual depictions of a child as described by Subsection (a)(1) but   fewer than 500 such depictions ] has been previously convicted one   time of an offense under that subsection; or                      (B)  the person possesses visual material that   contains 10 or more visual depictions of a child as described by   Subsection (a)(1) but fewer than 50 such depictions;                (2) [ (3) ]  a felony of the first degree if:                      (A)  it is shown on the trial of the offense that   the person [ possesses visual material that contains 500 or more   visual depictions of a child as described by Subsection (a)(1) ] has   been previously convicted two or more times of an offense under that   subsection; or                      (B)  the person possesses visual material that   contains:                            (i)  50 or more visual depictions of a child   as described by Subsection (a)(1); or                            (ii)  a videotape or film that visually   depicts conduct constituting an offense under Section   22.011(a)(2); or                 (3)  [ (4) ]  a felony of the first degree punishable by   imprisonment in the Texas Department of Criminal Justice for life   or for any term of not more than 99 years or less than 25 years if it   is shown on the trial of the offense that, at the time of the   offense, the person was:                      (A)  an employee at a child-care facility or a   residential child-care facility, as those terms are defined by   Section 42.002, Human Resources Code;                      (B)  an employee at a residential treatment   facility established under Section 221.056, Human Resources Code;                      (C)  an employee at a shelter or facility that   serves youth and that receives state funds; or                      (D)  receiving state funds for the care of a child   depicted by the visual material.          SECTION 4.  Section 43.26(d-1), Penal Code, as added by   Chapter 1041 (S.B. 129), Acts of the 88th Legislature, Regular   Session, 2023, is amended to read as follows:          (d-1)  If it is shown on the trial of an offense under   Subsection (a) that the visual material depicted a child younger   than 10 years of age at the time the image of the child was made [ or   that the defendant has been previously convicted of an offense   under that subsection ]:                (1)  an offense described for purposes of punishment by   Subsection (d) as a felony of the second or third degree [ (d)(1) or   (2) ] is increased to the next higher category of offense; or                (2)  the minimum term of confinement for an offense   described for purposes of punishment by Subsection (d)(2) [ (d)(3) ]   is increased to 15 years.          SECTION 5.  Sections 43.26(g) and (i), Penal Code, are   amended to read as follows:          (g)  An offense under Subsection (e) is a felony of the   second degree, except that the offense is :                 (1)   a felony of the first degree if the person promotes   or possesses with intent to promote visual material that contains   10 or more visual depictions of a child as described by Subsection   (a)(1) but fewer than 50 such depictions; or                 (2)     a felony of the first degree with a minimum term of   confinement of 15 years if:                       (A)   it is shown on the trial of the offense that   the person has been previously convicted of an offense under   Subsection (e); or                       (B)     the person promotes or possesses with intent   to promote visual material that contains:                             (i)     50 or more visual depictions of a child   as described by Subsection (a)(1); or                             (ii)     a videotape or film that visually   depicts conduct constituting an offense under Section 22.011(a)(2)   [ that subsection ].          (i)  For purposes of conduct prohibited under this section,   visual material to which that conduct applies includes :                 (1)   a depiction of a child:                       (A)  [ (1) ]  who is recognizable as an actual person   by the person's face, likeness, or other distinguishing   characteristic, such as a unique birthmark or other recognizable   feature; and                       (B)  [ (2) ]  whose image as a child younger than 18   years of age was used in creating, adapting, or modifying the visual   material, including computer-generated visual material that was   created, adapted, or modified using an artificial intelligence   application or other computer software ; or                 (2)     a depiction of a child, created using an   artificial intelligence application or other computer software,   that to a reasonable person is virtually indistinguishable from an   actual child younger than 18 years of age .          SECTION 6.  Section 43.261(b-1), Penal Code, is amended to   read as follows:          (b-1)  For purposes of conduct prohibited under Subsection   (b), visual material to which that conduct applies includes :                 (1)   a depiction of a minor:                       (A)  [ (1) ]  who is recognizable as an actual person   by the person's face, likeness, or other distinguishing   characteristic, such as a unique birthmark or other recognizable   feature; and                       (B)  [ (2) ]  whose image as a minor was used in   creating, adapting, or modifying the visual material, including   computer-generated visual material that was created, adapted, or   modified  using an artificial intelligence application or other   computer software ; or                 (2)     a depiction of a minor, created using an   artificial intelligence application or other computer software,   that to a reasonable person is virtually indistinguishable from an   actual minor .          SECTION 7.  Section 43.262(b-1), Penal Code, is amended to   read as follows:          (b-1)  For purposes of conduct prohibited under Subsection   (b), visual material to which that conduct applies includes :                 (1)   a depiction of a child:                       (A)  [ (1) ]  who is recognizable as an actual person   by the person's face, likeness, or other distinguishing   characteristic, such as a unique birthmark or other recognizable   feature; and                       (B)  [ (2) ]  whose image as a child younger than 18   years of age was used in creating, adapting, or modifying the visual   material, including computer-generated visual material that was   created, adapted, or modified using an artificial intelligence   application or other computer software ; or                 (2)     a depiction of a child, created using an   artificial intelligence application or other computer software,   that to a reasonable person is virtually indistinguishable from an   actual child younger than 18 years of age .          SECTION 8.  The following provisions of the Penal Code are   repealed:                (1)  Section 43.26(d-1), as added by Chapter 93 (S.B.   1527), Acts of the 88 [Text truncated for display. 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